People v. Gillespie

• Decision Date: 22 December 2014
• Docket Number: No. 4–12–1146.,4–12–1146.
• Citation: 23 N.E.3d 641
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Darren GILLESPIE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

23 N.E.3d 641

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Darren GILLESPIE, Defendant–Appellant.

No. 4–12–1146.

Appellate Court of Illinois, Fourth District.

Dec. 22, 2014.

Michael J. Pelletier, Jacqueline L. Bullard, Martin J. Ryan (argued), State Appellate Defender's Office, Springfield, for Appellant.

Julia Rietz, State's Attorney, Urbana (Patrick Delfino, David J. Robinson, Aimee Sipes Johnson (argued), State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice TURNER

delivered the judgment of the court, with opinion.

¶ 1 In November 2011, the State charged defendant, Darren Gillespie, by information with one count of robbery (720 ILCS 5/18–1(a)

(West 2010)) and two counts of aggravated criminal sexual assault (720 ILCS 5/12–14(a)(3), (a)(4) (West 2010) (text of section effective until July 1, 2011)). After a November 2012 trial, a jury found defendant guilty of both offenses. That same month, defendant filed a posttrial motion. In December 2012, the court denied defendant's posttrial motion and sentenced him to consecutive prison terms of 5 years for robbery and 22 years for aggravated criminal sexual assault.

¶ 2 Defendant appeals, arguing (1) his robbery conviction must be vacated as a lesser-included offense of aggravated criminal sexual assault and (2) the automatic-transfer statute (705 ILCS 405/5–130 (West 2010)

(text of section effective until July 1, 2011)) that required him to be tried as an adult in this case violates the eighth amendment of the United States Constitution (U.S. Const., amend.VIII), the proportionate-penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11 ), and due process (U.S. Const., amend. V ; Ill. Const. 1970, art. I, § 2 ). We affirm in part, vacate in part, and remand the cause with directions.

¶ 3 I. BACKGROUND

¶ 4 The State's original information charged defendant with robbery, in that he “knowingly took property, namely $74.00 and a pink cell phone, from the person of [R.C.] by threatening the imminent use of force.” The aggravated-criminal-sexual-assault charge under section 12–14(a)(3) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12–14(a)(3)

(West 2010) (text of section effective until July 1, 2011)) alleged defendant by the threat of force inserted his penis into R.C.'s vagina and in so doing threatened R.C.'s life by saying “ ‘be quiet or I'll kill you.’ ” The aggravated-criminal-sexual-assault charge under section 12–14(a)(4) of the Criminal Code (720 ILCS 5/12–14(a)(4) (West 2010) (text of section effective until July 1, 2011)) asserted that, during the commission of a felony, namely kidnapping, defendant committed a criminal sexual assault against R.C., in that by the threat of force defendant inserted his penis into her vagina. All three charges were alleged to have occurred on January 11, 2011. Defendant was born in July 1994 and thus was 16 years old at the time of the offenses.

¶ 5 At the beginning of the November 2012 trial, the State moved to dismiss the aggravated-criminal-sexual-assault charge under section 12–14(a)(3)

and amend the other two charges. The trial court granted the State's motion. The robbery charged then alleged “defendant knowingly took property, namely United States Currency and a cell phone, from the person of [R.C.] by threatening the imminent use of force.” The aggravated-criminal-sexual-assault charge under section 12–14(a)(4) of the Criminal Code (720 ILCS 5/12–14(a)(4) (West 2010) (text of section effective until July 1, 2011)) then asserted “defendant, during the commission of a felony, namely robbery, committed a criminal sexual assault * * * against [R.C.], in that by the threat of force the defendant inserted his penis into her vagina.”

¶ 6 During defendant's trial, R.C. testified that, over her lunch break at work, she went to an apartment to buy a prescription pill and was robbed of her cellular telephone and money by defendant and two other individuals. After R.C. emptied her pockets, defendant asked the two other individuals to leave and ordered R.C. upstairs. Once upstairs, defendant directed R.C. to the bathroom and demanded that she pull down her pants. At one point, he told her to be quiet or he would kill her. Defendant bent R.C. over a box and penetrated her vagina with his penis. Defendant withdrew and ejaculated on R.C.'s buttocks. Defendant left, and R.C. ran out of the apartment. After telling her employer she would not return to work, she went to the hospital, where a rape kit was completed. The Illinois State Police forensic laboratory report found defendant's deoxyribonucleic acid (DNA) matched the DNA on swabs from R.C.'s rectum. Defendant testified and admitted robbing R.C. However, he denied he sexually assaulted her and testified he and R.C. had consensual sex the night before at a party. R.C. denied being at a party the night before the attack.

¶ 7 At the conclusion of the trial, the jury found defendant guilty of both robbery and aggravated criminal sexual assault. On November 20, 2012, defendant filed a posttrial motion, raising numerous issues, none of which he raises on appeal. At a joint December 17, 2012, hearing, the trial court denied defendant's posttrial motion and sentenced him to consecutive prison terms of 5 years for robbery and 22 years for aggravated criminal sexual assault. On December 19, 2012, defendant filed a timely notice of appeal in compliance with Illinois Supreme Court Rule 606

(eff. Mar. 20, 2009). Thus, this court has jurisdiction of this appeal under Illinois Supreme Court Rule 603 (eff. Oct. 1, 2010).

¶ 8 II. ANALYSIS

¶ 9 A. Lesser–Included Offense

¶ 10 Defendant first asserts his robbery conviction must be vacated because, in his case, it is a lesser-included offense of aggravated criminal sexual assault since the robbery was the aggravating element. In other words, he contends his robbery conviction violates the one-act, one-crime rule established by our supreme court in People v. King, 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838 (1977)

. The State disagrees with defendant's assertion. Moreover, both parties note defendant did not preserve this issue for appeal but agree we should review it under the plain-error doctrine (Ill.S.Ct. R. 615(a) (eff. Jan. 1, 1967)) because a violation of the one-act, one-crime rule satisfies the second prong of that doctrine (see People v. Harvey, 211 Ill.2d 368, 389, 286 Ill.Dec. 124, 813 N.E.2d 181, 194 (2004) ). Accordingly, we review the merits of defendant's argument. The application of the one-act, one-crime rule presents a question of law, which this court reviews de novo.

People v. Johnson, 237 Ill.2d 81, 97, 340 Ill.Dec. 168, 927 N.E.2d 1179, 1189 (2010).

¶ 11 In King, 66 Ill.2d at 566, 6 Ill.Dec. 891, 363 N.E.2d at 845, our supreme court held “that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” Since King, the supreme court has explained the one-act, one-crime doctrine involves a two-step analysis. People v. Miller, 238 Ill.2d 161, 165, 345 Ill.Dec. 59, 938 N.E.2d 498, 501 (2010)

. The analysis is as follows:

“First, the court must determine whether the defendant's conduct involved multiple acts or a single act. Multiple convictions are improper if they are based on precisely the same physical act. Second, if the conduct involved multiple acts, the court must determine whether any of the offenses are lesser-included offenses. If an offense is a lesser-included offense, multiple convictions are improper.” Miller, 238 Ill.2d at 165, 345 Ill.Dec. 59, 938 N.E.2d at 501

.

¶ 12 At issue in this case is the second step of the analysis. In Miller, 238 Ill.2d at 166, 345 Ill.Dec. 59, 938 N.E.2d at 501–02, our supreme court “identified three possible methods for determining whether a certain offense is a lesser-included offense of another: (1) the abstract elements approach; (2) the charging instrument approach; and (3) the factual or evidence adduced at trial approach.” (Internal quotation marks omitted.) After a lengthy analysis, the Miller court concluded the abstract elements approach was the proper approach “to determine whether one charged offense is a lesser-included offense of another under King. ” Miller, 238 Ill.2d at 176, 345 Ill.Dec. 59, 938 N.E.2d at 507

. “Under the abstract elements approach, a comparison is made of the statutory elements of the two offenses. If all of the elements of one offense are included within a second offense and the first offense contains no element not included in the second offense, the first offense is deemed a lesser-included offense of the second.” Miller, 238 Ill.2d at 166, 345 Ill.Dec. 59, 938 N.E.2d at 502. In other words, under this approach, “it must be impossible to commit the greater offense without necessarily committing the lesser offense.” Miller, 238 Ill.2d at 166, 345 Ill.Dec. 59, 938 N.E.2d at 502. Additionally, “[t]he abstract elements approach does not look to the facts of a crime as either charged in the particular charging instrument or proved at trial.” People v. Novak, 163 Ill.2d 93, 106, 205 Ill.Dec. 471, 643 N.E.2d 762, 769 (1994). The Miller court described the abstract elements approach as the most clearly stated and the easiest to apply but noted “it is the strictest approach in the sense that it is formulaic and rigid, and considers ‘solely theoretical or practical impossibility.’ ” Miller, 238 Ill.2d at 166, 345 Ill.Dec. 59, 938 N.E.2d at 502 (quoting Novak, 163 Ill.2d at 106, 205 Ill.Dec. 471, 643 N.E.2d at 769).

¶ 13 Here, defendant was convicted of aggravated criminal sexual assault under section 12–14(a)(4) of the Criminal Code (720 ILCS 5/12–14(a)(4)

(West 2010) (text of section effective until July 1, 2011)). That section provides a person commits aggravated criminal sexual assault if he “commits criminal sexual assault” and the offense was...